Roofing Systems Consultants, a Division of Bit U Tech, Inc. (Commission decision, May 23, 1980)

Read the official release (oshrc.gov)

Plain-English summary

Eight of the company's employees were pushing four inches of snow off the roof of an unfinished one-story building in Syracuse, New York, when an OSHA compliance officer arrived. The roof was about 100 by 150 feet and stood 20 feet above the ground. Its surface was bare metal decking, wet and slippery. The crew pushed the snow through a 15 foot gap in the parapet along the west side, working within four feet of that gap, and some of them went to within a foot of the edge to check where the snow was landing. Nobody wore a safety belt. Administrative Law Judge David J. Knight vacated the citation, finding both that there was no ascertainable fall hazard and that compliance was infeasible.

The law changed between the judge's decision and the Commission's. In S & H Riggers and Erectors the Commission set out what the Secretary must prove to establish a violation of 29 C.F.R. § 1926.28(a): employee exposure to a hazardous condition requiring personal protective equipment, and identification of the appropriate form of equipment. That decision expressly overruled the earlier cases, such as Frank Briscoe, that had also required the Secretary to prove that using the equipment was feasible.

On exposure the Commission worked from the judge's own findings. He found that eight employees came within four feet of the edge, and the record showed an employee occasionally going within a foot of it. Employees within four feet of an unguarded edge or opening are exposed to a fall hazard. On whether the condition was hazardous, the test is whether a reasonable person familiar with the circumstances, including facts unique to the industry, would recognize a hazard warranting protective equipment. With a wet and slippery deck the answer was obvious, and it matched a line of roofing cases including Martin-Tomlinson Roofing, Hurlock Roofing, J.W. Conway and Voegele. The Secretary identified safety belts, which satisfied the second element.

The company's testimony about why the compliance officer's proposals would not work was treated as raising the affirmative defenses of impossibility and greater hazard, and both failed. Impossibility requires showing that compliance is functionally impossible or would preclude the work and that alternative protection is unavailable. The company's president said the architect might not have permitted stanchions, but the architect was apparently never asked, no proof was offered that the stanchion and belt method was impossible or would have prevented the work, and no protective measures of any kind were taken. Greater hazard requires showing that compliance would be more dangerous than noncompliance, that alternatives were unavailable, and that a variance would be inappropriate. The Commission did not accept that tripping over lanyards is a greater threat than falling 20 feet.

Commissioner Barnako wrote separately in the footnotes. He continues to require, beyond the majority's test, that the Secretary prove a feasible means of protection and that another standard in Part 1926 indicate the need for the equipment. He found both satisfied here: safety belts could have been tied to a cable strung between stanchions secured to the roof deck, and the company failed to rebut that because it never asked the architect; and 29 C.F.R. § 1926.104, which sets specifications for safety belts, lanyards and lifelines, gives employers notice that such equipment is an appropriate answer to fall hazards. He parted company on the compliance officer's second proposal, the co-operative work plan in which employees pass snow outward in a line and only the outermost workers tie off. The company's president testified that the snow was too heavy to push from the interior toward the edge, and no witness for the Secretary rebutted that, so the feasibility of the work plan was not established.

The violation was serious, because a 20 foot fall would probably cause serious injury or death and the company knew of the condition. The Commission assessed a penalty of $200, reduced from the $550 proposed, after considering good faith, company size and the absence of prior violations. It rejected the argument that the snow piled on the ground made the fall nonserious, though it did take the soft ground cover into account in setting the penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.28(a)
• Outcome: Affirmed. The judge's vacatur is set aside, the citation is affirmed as a serious violation, and a $200 penalty is assessed.
• Key point: After S & H Riggers the Secretary identifies the right protective equipment but does not prove that using it was feasible; infeasibility is the employer's defense to plead and prove.

Full text (OSHRC public release)

Docket No. 76-592

1 of 202 DOCUMENTS

TURNER COMPANY

A. SCHONBEK & CO., INC.

NORANDA ALUMINUM, INC.

GENERAL MOTORS CORP., GM ASSEMBLY DIV.

ALLIED PLANT MAINTENANCE CO. OF OKLAHOMA, INC.

CLEMENT FOOD COMPANY

MILLCON CORPORATION

FWA DRILLING COMPANY, INC.

CCI, INC.

GENERAL ELECTRIC COMPANY

CONSOLIDATED ALUMINUM CORPORATION

THE BRONZE CRAFT CORPORATION

CARGILL, INC.

CHAPMAN CONSTRUCTION CO., INC.

GALLO MECHANICAL CONTRACTORS, INC.

SPECIAL METALS CORPORATION

WILLAMETTE IRON AND STEEL COMPANY

NASHUA CORPORATION

WESTINGHOUSE ELECTRIC CORPORATION

RESEARCH-COTTRELL, INC.

ROCKWELL INTERNATIONAL CORPORATION

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

NEWPORT NEWS SHIPBUILDING & DRYDOCK CO.

BUNKOFF CONSTRUCTION CO., INC.

GENERAL MOTORS CORPORATION, FRIGIDAIRE DIVISION

HARRIS BROTHERS ROOFING CO.

GENERAL DIVERS COMPANY

ORMET CORPORATION

R. ZOPPO CO., INC.

COEUR D'ALENE TRIBAL FARM

L. A. DREYFUS COMPANY

CMH COMPANY, INC.

BENTON FOUNDRY, INC.

MICHAEL CONSTRUCTION CO., INC.

WHIRLPOOL CORPORATION

BROWN & ROOT, POWER PLANT DIVISION

MARION POWER SHOVEL CO., INC.

ERSKINE-FRASER CO.

MORRISON-KNUDSEN AND ASSOCIATES

THE BOAM COMPANY

DIC-UNDERHILL, a Joint Venture

C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

STRIPE-A-ZONE, INC.

FORTE BROTHERS, INC.

RAYBESTOS FRICTION MATERIALS COMPANY

TEXLAND DRILLING CORPORATION

THE ANACONDA COMPANY, WIRE AND CABLE DIVISION

SAM HALL & SONS, INC.

VAMPCO METAL PRODUCTS, INC.

LEONE INDUSTRIES, INC.

ASARCO, INC.

DURANT ELEVATOR, A DIVISION OF SCOULAR-BISHOP GRAIN COMPANY

PLUM CREEK LUMBER COMPANY

PLUM CREEK LUMBER COMPANY

STEARNS-ROGER, INC.

FERRO CORPORATION, (ELECTRO DIVISION)

AMERICAN PACKAGE COMPANY, INC.

BROWN & ROOT, INC., POWER PLANT DIVISION

FLEETWOOD HOMES OF TEXAS, INC.

DONALD HARRIS, INC.

A. PROKOSCH & SONS SHEET METAL, INC.; MID-HUDSON AUTOMATIC SPRINKLER COMPANY, INC.

ELECTRICAL CONSTRUCTORS OF AMERICA, INC.

DAYTON TIRE & RUBBER COMPANY (Division of the Firestone Tire & Rubber Company)

ASARCO, INC., EL PASO DIVISION; HUGHES TOOL COMPANY

NAVAJO FOREST PRODUCTS INDUSTRIES

METROPAK CONTAINERS CORPORATION

AUSTIN BUILDING COMPANY

BABCOCK AND WILCOX COMPANY

DARRAGH COMPANY

BABCOCK & WILCOX COMPANY

OTIS ELEVATOR COMPANY

R. ZOPPO COMPANY, INC.

LUTZ, DAILY & BRAIN - CONSULTING ENGINEERS

PENNSYLVANIA POWER & LIGHT CO.

HARSCO CORPORATION, d/b/a PLANT CITY STEEL COMPANY

NORTHWEST AIRLINES, INC.

INDEPENDENCE FOUNDRY & MANUFACTURING CO., INC.

GENERAL MOTORS CORPORATION, INLAND DIVISION

WELDSHIP CORPORATION

S & S DIVING COMPANY

SNIDER INDUSTRIES, INC.

NATIONAL STEEL AND SHIPBUILDING COMPANY

MAXWELL WIREBOUND BOX CO., INC.

CONTINENTAL GRAIN COMPANY

MISSOURI FARMER'S ASSOCIATION, INC., MFA BOONVILLE EXCHANGE; MFA, INC., d/b/a MFA GRAIN DIVISION; DESERT GOLD FEED COMPANY

CAPITAL CITY EXCAVATING CO., INC.

GAF CORPORATION

PPG INDUSTRIES (CARIBE) a Corporation

DRUTH PACKAGING CORPORATION

SOUTHWESTERN ELECTRIC POWER COMPANY

TUNNEL ELECTRIC CONSTRUCTION CO.

WEATHERBY ENGINEERING COMPANY

JOHNSON STEEL & WIRE CO., INC.

AUSTIN ROAD CO.

MAYHEW STEEL PRODUCTS, INC.

LADISH CO., TRI-CLOVER DIVISION, a Corporation

PULLMAN POWER PRODUCTS, INC.

NATIONAL ROOFING CORPORATION

OSCO INDUSTRIES, INC.

HIGHWAY MOTOR COMPANY, d/b/a PARK PRICE MOTOR COMPANY

S.J. GROVES AND SONS COMPANY

CAR AND TRUCK DOCTOR, INC.

PRESTRESSED SYSTEMS, INC.

TEXACO, INC.

GEORGIA HIGHWAY EXPRESS, INC.

RED LOBSTER INNS OF AMERICA, INC.

SUNRISE PLASTERING CORP.

STONE & WEBSTER ENGINEERING CORPORATION

H.B. ZACHRY COMPANY (INTERNATIONAL)

NATIONAL INDUSTRIAL CONSTRUCTORS, INC.

BUSHWICK COMMISSION COMPANY, INC.

CIRCLE T DRILLING CO., INC.

J.L. FOTI CONSTRUCTION COMPANY, INC.

TEXACO, INC.

KENNETH P. THOMPSON CO., INC.

HENRY C. BECK COMPANY

HEATH & STICH, INC.

FARMERS EXPORT COMPANY

FOSTER AND KLEISER

TURNER WELDING & ERECTION CO., INC.

TRI-CITY CONSTRUCTION CO.

THE DURIRON COMPANY, INC.

SAMSON PAPER BAG CO., INC.

MEL JARVIS CONSTRUCTION COMPANY, Inc.

MIDWEST STEEL ERECTION, INC.

GEISLER GANZ CORPORATION

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY

NATIONAL MANUFACTURING COMPANY

WALLACE ROOFING COMPANY

REYNOLDS METALS COMPANY, INC.

UNIVERSAL ROOFING AND SHEET METAL COMPANY, INC.

SUFFOLK COUNTY CONTRACTORS, INC.

NORANDA ALUMINUM, INC.

ROOFING SYSTEMS CONSULTANTS, A DIVISION OF BIT U TECH, INC.

OSHRC Docket No. 76-592

Occupational Safety and Health Review Commission

May 23, 1980

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Regional Solicitor, USDOL

C. H. Meile, Pres., Roofing System Consultants, Div. of Bit U Tech Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge David J. Knight is before the Commission pursuant to section 12(j), 29 U.S.C.

661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C.

651-678 ("the Act").

At issue is whether Respondent violated the Act by failing to comply with the standard at 29 C.F.R.

1926.28(a) n1 because its employees worked on an unfinished roof without using personal protective equipment.

The judge vacated the citation finding that the employees were not exposed to an ascertainable fall hazard and that compliance with the standard was infeasible. Chairman Cleary granted the Secretary's petition for review.

The specific issues on review are whether the judge erred in vacating the citation on the grounds that the cited working conditions posed no danger to Respondent's employees and that the use of safety belts and lifelines was not feasible. n2 The Secretary filed a brief

[*2]

with the Commission.

Respondent did not file a brief.

We reverse the judge's decision and find that Respondent committed a serious violation of the Act.

We assess a penalty of $200.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n1 This standard provides:

1926.28 Personal protective equipment

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

The original citation and complaint alleged a violation of

5(a)(1) of the Act, 29 U.S.C.

654(a)(1) and 29 C.F.R.

1926.500(d)(1).

Because the Commission subsequently held

1926.500(d)(1) to be inapplicable to flat roofs (see, e.g., Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD P20,761 (No. 8173, 1976)), the Secretary, prior to the hearing, moved to amend the citation and complaint to allege noncompliance with

1926.28(a).

Respondent did not object to the change, and the judge granted the Secretary's motion to amend.

n2 In addition, former Commissioner Moran directed review of the case "for error."

[*3]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

I

Eight of Respondent's employees were clearing four inches of snow off of the roof level of an unfinished one-story building in Syracuse, New York, when an OSHA compliance officer conducted a routine inspection. n3 Respondent was the roofing contractor for the building.

The roof was approximately 100 feet by 150 feet and was 20 feet above ground level.

I was unfinished. The roof surface, a layer of metal decking, was wet and slippery. There was a 15 foot gap in a parapet that ran along the west side of the roof. n4 Using slag pushers and brooms, Respondent's employees pushed the snow through the opening in the parapet.

The workers came to within four feet of that gap near the roof edge while clearing the snow. n5 To see if the snow was falling into the intended areas, some workers occasionally came within one foot of the roof edge. The snow was piled at least four feet high on the ground below. n6 The employees did not wear safety belts.

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n3 There were 11 people working on the roof but only eight of them were Respondent's employees.

All 11 roof-top workers were removing the snow.

n4 There were parapets running along portions of the west and south sides of the building.

Masonry scaffolding abutted the perimeter along the north side and at the northeast corner.

n5 The compliance officer testified that workers came within one-to-two feet of the unprotected edge. Respondent's president testified that they came no closer than three-to-four feet of the edge.

n6 The compliance officer testified that the snow was piled four feet high on the ground whereas Respondent's president testified that the snow was piled six-to-ten feet high.

[*4]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Much of the testimony at the hearing concerned the feasibility of using safety belts and lanyards. The compliance officer proposed two methods of protecting the employees from what he considered to be a fall hazard: 1) the construction of stanchions with a cable strung between them to which safety belts could be attached and 2) a co-operative work plan of one worker pushing snow to the next, moving from the interior sections of the roof towards the perimeter, with the outermost workers protected by 50-foot lanyards tied off to the "roof holes." According to the compliance officer, the workers positioned at the roof interior were not exposed to a fall hazard and therefore did not require personal protective equipment.

Respondent's president disputed the feasibility of the compliance officer's two suggested methods for protecting workers.

The president opined that the architect would not permit the construction of stanchions, and therefore it would have been impossible to implement that method.

In his view, the proposal requiring the use of 50-foot lanyards was inadequate because the lanyards would [*5]

have become entangled and would have interfered with the employees' mobility, creating greater hazards. The president contended that the entanglement problem would have been aggravated by the wet and freezing conditions on the roof top.

II

The judge vacated the citation both because there was no ascertainable hazard and because there was no proven feasible method of abatement.

Relying on Cape & Vineyard Division v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), the judge asserted that, to prove a violation of a general standard such as section 1926.28(a), the Secretary must establish that a prudent person familiar with the industry would have recognized that personal protective equipment was necessary.

The judge found that when pushing the snow the workers came no closer than four feet of the edge. He further found that there was "no danger to the employee who approaches this edge only to look over to check the ground where the snow was dropping." The judge concluded that there was no violation of section 1926.28(a) because the Respondent, an employer very familiar with roofing work, would not have understood that personal protective equipment was necessary under these circumstances.

[*6]

The judge imposed on the Secretary the burden of proving a feasible means of abatement.

Because he found that stanchions could not be erected and that using 50-foot lanyards would have created impossible work conditions, the judge concluded that the use of safety belts and lifelines was infeasible. He determined, therefore, that the Secretary did not satisfy his burden of proof on the abatement issue.

III

The Secretary's principal contention on review is that, contrary to the judge's conclusion, to prove employee exposure the Secretary need only establish that a hazard was accessible.

The Secretary asserts that the employees were exposed to a fall hazard because the evidence establishes that they were within four feet of the edge, and that even at four feet they were exposed to the danger of falling in view of the slippery conditions.

The Secretary also contends that the judge erred in concluding that the use of safety belts was infeasible. Finally, the Secretary asserts that the violation was serious within the meaning of section 17(k) of the Act.

Respondent filed no brief on review.

IV

In S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1976 CCH [*7]

OSHD P23,480 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June 7, 1979) ("S & H Riggers") the Commission majority set forth an analytical framework for evaluating alleged violations of section 1926.28(a).

We held that to establish a prima facie violation of section 1926.28(a), the Secretary must 1) prove employee exposure to a hazardous condition requiring the use of personal protective equipment and 2) identify the appropriate form of personal protective equipment to eliminate the hazard. We specifically held that the Secretary need only identify the appropriate form of personal protective equipment; the Secretary need not prove the feasibility of using the equipment. n7

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n7 In S & H Riggers we overruled earlier Commission decisions that required the Secretary to prove the feasibility of using personal protective equipment.

See, e.g., Frank Briscoe, Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD P21,162 (No. 7792, 1976).

We note that the judge rendered his decision in this case prior to our S & H Riggers ruling.

---

[*8]

• • -End Footnotes- - - - - - - - - - - - - - - - -

The judge's conclusion that there was no ascertainable hazard was based in part upon the erroneous finding that there was no employee exposure. The record indicates that an employee would occasionally go to within one foot of the unprotected roof edge to see if the snow was falling into the intended areas.

Further, as the judge found, eight employees came within four feet of the edge. Employees within four feet of an unguarded floor edge or opening are clearly exposed to a fall hazard. See Otis Elevator Co., 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978).

Hence, Respondent's employees were exposed to the cited condition. n8

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n8 Commissioner Barnako finds that employees who came within a foot of the roof's edge were exposed to the fall hazard. Because the snow and ice made conditions on the roof extremely slippery, Commissioner Barnako concludes that employees within four feet of the edge were also exposed to the cited hazard. See Gilles & Cotting, Inc., 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD P20,448 (No. 504, 1976).

[*9]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

A particular condition is hazardous within the meaning of section 1926.28(a) if "a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment." S & H Riggers, supra, 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. Especially in light of the wet and slippery condition of the roof surface, the fall hazard in this case was obvious.

As in other cases involving similar facts we hold that a reasonable person would recognize that employees working near the perimeter of an unguarded flat roof are exposed to a hazard warranting the use of personal protective equipment.

Martin-Tomlinson Roofing Co., 79 OSAHRC    , 7 BNA OSHC 2122, 1979 CCH OSHD P24,167 (No. 76-2339, 1979); Hurlock Roofing Co., 79 OSAHRC 75/F14, 7 BNA OSHC 1867, 1979 CCH OSHD P24,006 (No. 14907, 1979); J.W. Conway, Inc., 79 OSAHRC 91/A2, 7 BNA OSHC 1718, 1979 CCH OSHD P23,869 (No. 15942, 1979); Voegele Co., 79 OSAHRC 76/A2, 7 BNA OSHC 1713, 1979 [*10]

CCH OSHD P23,860 (No. 76-2199, 1979).

As to the second element of the Secretary's burden of proving a violation of the standard at section 1926.28(a), that is, the requirement of identifying the appropriate form of personal protective equipment, the Secretary identified safety belts as the form of personal protective equipment to eliminate the fall hazard confronting Respondent's employees.

In addition, the Secretary proffered two methods for using personal protective equipment: 1) the construction of stanchions with a cable strung between them to which safety belts could be tied-off and 2) a co-operative work plan requiring only the outermost employees to tie-off by using long lanyards. n9

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n9 Commissioner Barnako adheres to his view that in order to establish a violation of

1926.28(a) the Secretary must show not only that a reasonable person familiar with the industry would recognize a hazard warranting the use of personal protective equipment but also that a feasible means of protecting against the cited hazard exists.

S & H Riggers, supra (concurring opinion).

Commissioner Barnako agrees with his colleagues that the falling hazard to which Respondent's employees were exposed was an obvious one.

He also finds that the Secretary satisfied his burden with respect to feasibility by demonstrating that safety belts could have been attached to a cable stretched between stanchions secured to the roof deck.

Respondent objects to the use of stanchions because the architect might not have permitted the construction of stanchions. Never-theless, the record indicates that Respondent never questioned the architect about this possibility.

Accordingly, in the absence of evidence indicating that the architect would not have permitted the erection of stanchions, Respondent failed to rebut the Secretary's prima facie case as to the feasibility of the stanchion system.

See Forest Park Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1181, 1187, 1980 CCH OSHD P    (No. 76-1844, 1980) (concurring opinion).

Although Commissioner Barnako finds the stanchion system was feasible, he concludes that the Secretary failed to establish the feasibility of the cp-operative work plan.

As described by the compliance officer, the co-operative work plan would operate in a manner similar to a bucket brigade in that employees would be positioned in a line away from the edge. The employees furthermost from the edge would shovel snow from one to the other until the employees at the edge received the snow. Those employees at the edge would then shovel the snow off the roof. Only the employees at the edge would be required to wear safety belts. Respondent's president testified that the weight of the snow was so heavy that it would have been impossible for its employees to shovel snow from the back toward the edge of the roof. He stated that the employees would "have to start right from the edge where they are pushing off and then just move back several feet at a time as they pushed that through, or else the weight is so heavy that you couldn't even move it." None of the Secretary's witnesses rebutted this statement.

Accordingly, the Secretary failed to establish the feasibility of a co-operative work plan for removing the snow.

Commissioner Barnako would also require that another standard in Part 1926 indicate the need for using the personal protective equipment which the Secretary asserts should have been used.

S & H Riggers, supra (concurring opinion).

He notes that 29 C.F.R.

1926.104 establishes specifications for safety belts, lanyards, and lifelines and therefore gives notice to employers that use of that equipment is an appropriate method of protecting against fall hazards.

[*11]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Thus, having established that Respondent's employees were exposed to a hazardous condition requiring the use of personal protective equipment and having identified the appropriate form of protective equipment, the Secretary established a prima facie violation of section 1926.28(a).

Respondent's testimonial response to the compliance officer's proposals for abating the hazard suggest the Commission-recognized affirmative defenses of impossibility and greater hazard. See S & H Riggers, supra, 7 BNA OSHC at 1267, 1979 CCH OSHD at p. 28,439. We find that Respondent did not prove either defense.

To establish the affirmative defense of impossibility of compliance or performance the employer must show that 1) compliance with the requirements of the cited standard is either functionally impossible or would preclude performance of the required work and 2) alternative means of employee protection are unavailable.

M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979).

Although Respondent's president suggested that the architect might not have

[*12]

permitted the construction of stanchions, apparently the architect was never questioned about that possibility.

Moreover, Respondent offered no proof that the stanchion and safety belt method was functionally impossible or that the use of that equipment would have precluded performance of the required work.

Further, Respondent failed to demonstrate that any means were taken to protect employees.

Thus, its impossibility defense fails.

To establish the affirmative defense of greater hazards the employer must show that: 1) compliance with a standard would create a greater hazard than noncompliance, 2) alternative means of protecting the employees were not available, and 3) an application for a variance would be inappropriate.

S & H Riggers, supra, 7 BNA OSHC at 1267, 1979 CCH OSHD at p. 28,440. Respondent suggested that the lanyard method of protection would have caused tripping problems because of the long lanyards needed for all 11 workers and because of the aggravating weather conditions.

However, the compliance officer suggested a co-operative work plan to reduce the number of lanyards needed and thereby furnish any tripping hazard. In any event, we do not accept the [*13]

assertion that a tripping hazard poses a greater threat to employee safety than the hazard of falling 20 feet. Accordingly, Respondent did not prove that compliance with the standard would have created greater hazards to its employees.

V

Having found that the Secretary made a prima facie showing that Respondent was in noncompliance with the standard at section 1926.28(a) and that Respondent was unable to establish an affirmative defense, we hold that Respondent violated the Act as alleged by the Secretary.

Further, because the employees were exposed to a 20 foot fall hazard and the likely result of a fall would have been serious injury or death, and because the evidence establishes Respondent's knowledge of that condition, we find that the violation was serious.

After considering Respondent's good faith, company size, and absence of prior OSHA violations, we assess a penalty of $200 reduced from the $550 proposed by the Secretary. n10

• • • • • • • • • • • • • • • • • -Footnotes- - - - - - - - - - - - - - - - - -

n10 At the hearing, Respondent argued that if there was a fall hazard it was nonserious because the presence of snow on the ground below would minimize the impact of a fall.

We conclude that there is a substantial probability that a 20 foot fall off the roof would have caused serious injury or death regardless of the snow. However, in assessing the penalty, we take into account the relatively soft ground cover.

See American Bechtel, Inc., 77 OSAHRC 214/A2, 6 BNA OSHC 1246, 1977-78 CCH OSHD P22,466 (No. 11340, 1977).

[*14]

• • • • • • • • • • • • • • • • -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, we set aside the judge's decision, affirm the citation for a serious violation of the Act for failure to comply with the standard at 29 C.F.R.

1926.28(a), and assess a penalty of $200.

SO ORDERED.